CSKT Water Compact: Defeating Senate Bill 3013

Exploiting Indians

Montana Bison Range and Refuge Management in Question

June 22, 2003
by Ron Selden, Indian Country Today

HELENA, Mont. – Defining what is “inherently federal” is a main issue to be resolved in a revived proposal from the Confederated Salish and Kootenai Tribes to manage the National Bison Range and two nearby wildlife refuges on Montana’s Flathead Indian Reservation.

The 18,500-acre Bison Range, established in 1908, and the Ninepipes and Pablo national wildlife refuges are currently run by the U.S. Fish and Wildlife Service (USFWS), a branch of the U.S. Department of Interior. The tribes want to contract year-to-year management of the properties through provisions of the federal Indian Self-Determination and Education Assistance Act.

In April 2002, Interior published a long list of federal properties in the Federal Register that are eligible to be managed by so-called “self-governance” tribes that can prove the sites have “special geographic, historical, or cultural significance” to their nations. Included on the list are 33 national parks, preserves, battlefields, seashores and monuments,19 national refuges, hatcheries and other similar operations, and nearly a dozen federal water projects.

Negotiations between the Salish and Kootenai tribes and top Interior officials over the three Montana sites are under way, and the parties hope to complete draft annual funding and management agreements by June 30 so they can be put out for a 90-day public and congressional review. Tribal and federal officials say the proposal could be finalized by the end of November.

If approved, the Salish and Kootenai would be the first tribes in the nation to be authorized for such a management transfer. Interior officials recently entertained a similar proposal from tribal leaders in Alaska to take over some management duties at Yukon Flats National Wildlife Refuge, but that request was denied, says Paul Hoffman, assistant Interior secretary for fish, wildlife and parks. He adds that the Athabascan groups say they’ll soon submit another proposal for federal consideration.

A Salish and Kootenai initiative in 1994 to manage the three Montana properties drew vehement attacks from non-Indian opponents on the reservation and from national anti-sovereignty groups that argued the refuges should stay under sole federal control. Backers of the revised proposal, as with the first request, note that no land titles would be transferred in the action, and the federal government would maintain strict oversight of all Bison Range and refuge activities.

An ongoing point of discussion is over exactly what duties the USFWS would retain and which would be relinquished to the tribes. According to Hoffman, it has so far been determined that one inherent federal function would be to keep a primary USFWS manager in place at the Bison Range. But, he says, almost everything else in the talks remains up in the air.

“Every function does not have to be done by a federal employee,” he explains. “We’re still trying to work out the details on that.”

Opponents, some organized under the Citizens Equal Rights Alliance (CERA), its sister organization, the Citizens Equal Rights Foundation (CERF), and All Citizens Equal, a Flathead Reservation-based group that has fought Salish and Kootenai projects and jurisdiction for more than three decades, also cry foul over a proposed plan to eventually instate tribal hiring preferences at the Bison Range and refuges. In addition, they’re criticizing the parties for keeping the actual talks private, even though members of the public have throughout the process been invited to air their views on the matter to each of the parties.

“We’re very interested in public comment,” Hoffman says. “But we are not conducting a poll. We will listen to concerns and incorporate them into the negotiations, but it’s not a matter of going through the mail and counting who is for and who is against.”

Some detractors are also taking a purely racial route by arguing that the tribes, despite a strong record of compacting and contracting a host of other federal programs, are not capable of managing the Bison Range and nearby refuges, will allegedly harass and fire non-Indian employees, and will otherwise degrade the popular facilities, which draw visitors from around the globe. Others argue that the tribes might try to impose traditional religions on Christian schoolchildren who visit on tours.

Tribal leaders, after taking a pounding and watching their 1994 request flame out politically, are taking a decidedly proactive stance this time around. Television, newspaper and radio ads commissioned by the tribes urge area citizens to “Join the Herd” and support the transfer of management. Other ads, op-ed columns and letters to the editor take on misinformation spread by CERA, CERF, ACE and other naysayers. “Don’t Be Buffalo’ed,” says one recent tribal advertisement.

“We are happy to begin the negotiation process, and we are encouraged about the opportunities for tribal management of these refuges which lie within the Flathead Reservation and have clear cultural and historic ties to our tribes,” says Salish and Kootenai Chairman Fred Matt. Tribal leaders note that the Bison Range is comprised of former trust lands and federal leases of tribal land make up much of the two national refuges. They also point out that descendants of an early tribal bison herd were some of the first animals to be released on the range.

Detractors, meanwhile, are also pounding the airwaves, circulating a national petition to stop the pending agreements, organizing gatherings, and urging opponents to contact U.S. Sen. Conrad Burns, R-Mont., who played a prominent role in derailing the tribes’ earlier proposal.

This time, says Burns spokesman J.P. Donovan, the senator, who chairs the Senate Appropriation Committee’s Interior subcommittee, is closely watching the situation and calling for all of the contracting process to be open.

“He wants this to be vetted in the public process – no behind-the-scenes, closed-door meetings,” Donovan says. “He feels this is a local decision. He really wants to hear from constituents.”

Bob Larsson, a St. Ignatius resident and founder of a private youth program on the reservation, says he’s against the transfer because of the precedent it would set. But he maintains his opposition is not racially based.

“It is a national refuge, part of the national system,” Larsson says. “It’s working very well. It’s worked for 95 years at the Bison Range. I don’t see any reason to fix what’s not broke. It was not started like the BIA for Indian things. It’s public land. If it was a BIA project, it would be a whole different story.”

Larsson, however, says he’s increasingly dismayed with the tenor of the debate. At a recent opposition gathering in nearby Missoula, numerous detractors degraded tribal members by saying the transfer would be “another handout to the Indian people,” and alleged the Salish and Kootenai government, one of the most progressive tribal organizations in the country, is not accountable to non-Indian concerns, especially when it comes to resource-management issues.

In recent weeks, Public Employees for Environmental Responsibility (PEER), a national association of government employees from natural resource agencies, blasted the tribal proposal for allegedly being illegal. According to a June 9 letter to Interior Secretary Gale Norton, federal employees may end up being improperly displaced, PEER attorney Dan Meyer wrote, and the proposed action cannot move forward without a full-blown environmental impact statement. Tribal and federal officials have not yet responded to the group’s charges.

Hoffman, meanwhile, says the ground rules for negotiations and qualifications are a lot clearer than when the Salish and Kootenai broached the first proposal in the mid-1990s.

“I think there is a better understanding of what’s on the table this time,” he adds.

This article was found at http://IndianCountry.com

Comment Sought on Controversial Water Rights Proposal

By John Stromnes, The Missoulian
January 18, 2002

WHITEFISH — The Montana Reserved Water Rights Compact Commission sent out a plea Monday for public comment on the dicey issue of a proposed tribal-state water rights agreement in the Flathead region.

The plea was made during a meeting of the Flathead Basin Commission, which met in Whitefish.

The issue: A far-reaching proposal by the Confederated Salish and Kootenai Tribes to assume jurisdiction of all water rights on the Flathead Reservation as a first step in negotiating a compact with the state and federal governments over contentious water issues.

Under the tribal proposal, the state would be required to concede that all water on the reservation, surface and below ground, is tribal. The tribe would recognize non-Indian users’ existing claims to tribal water, guaranteeing them fairness and due process in a tribally administered forum.

Kevin Howlett, tribal representative on the Flathead Basin Commission and a member of the Confederated Salish and Kootenai Tribal Council, said existing non-Indian users’ water rights will be respected. But additional allocations of water to non-Indians is questionable.

“We are willing to share the water, but we are not willing to say our future (tribal) uses are going to be compromised,” Howlett said. The tribal confederacy believes control of water resources is a vital to preserving its culture, especially its aboriginal fishing rights “in the usual and accustomed places,” as guaranteed by the Hellgate Treaty of 1855.

State government and the water compact commission have reacted warily so far, asking for written clarification of “substantive issues” raised by the tribal proposal.

Issues include how such an agreement might affect seniority or water rights, changes of water use and points of diversion, new uses, off-reservation “aboriginal” rights, along with procedural points. The state also has asked which issues are negotiable, and which are not.

“If anybody has ideas, concerns, opposition, let us know in the next month,” said Susan Cottingham, the compact commission’s top staff member.

Cottingham told the Missoulian that no formal public hearings will be called by the commission to solicit public comment. It is up to agencies, organizations and people who believe they have a stake in the matter to contact the commission to either schedule informal meetings with commission representatives or present written comments. The commission is chaired by Chris D. Tweeten, a state Department of Justice attorney. The address is 1 635 11th Ave., P.O. Box 201601, Helena MT 59620-1601.

The commission so far has received written public comment only from a Plains resident and from the Flathead Joint Board of Control, representing irrigators in the Mission Valley and eastern Sanders County.

Commission representatives also have met with the Lake County commissioners and conservation districts in Lake and eastern Sanders County, plus the Joint Board of Control, Cottingham said.

If and when a draft agreement among tribal, state and federal governments is reached, the commission will schedule more public meetings. All negotiations between the state and tribe are open to the public, and public comment may be accepted during these meetings.

Tribal Court Overstepped In Eligibility Case, Judge Says

by The Associated Press
January 8, 2002

Billings (AP) – The Fort Peck Tribal Court had no authority to order Wolf Point High School to let a boy play basketball even though he was academically ineligible, a federal judge said Thursday.

U.S. District Judge Richard Cebull said he would issue a written order in a few days, but made it clear what that ruling would be.

He said he would extend his temporary order preventing the tribal court from further interfering with school district policy regarding eligibility for extracurricular activities, and may make it his final order.

The ruling will have little effect on the teen-ager, Ryan Michaelson. He was not allowed to play in the fall semester because Cebull prevented the tribal court from enforcing its order on the school district. Only two weeks remain in the semester, and attorneys indicated that he is passing all subjects and will be eligible to play next semester.

Cebull expressed skepticism of tribal claims during a long hearing Thursday. He referred repeatedly to recent cases in Montana, other states and at the Supreme Court that limit tribes’ civil jurisdiction over non-Indian entities.

The case began last spring when the boy, then a sophomore, failed French, making him ineligible to play basketball this fall. The boy and his mother, Cynthia Michaelson, contend that he received the grade unfairly, and they asked tribal court for a temporary restraining order against the school district that would let the boy play while challenging the grade through school district procedures.

The school district said tribal court had no jurisdiction and did not appear at a hearing. The tribal judge issued an order in favor of the boy and his mother, and the school district appealed to federal court.

The district argued that the tribal court order is an “unauthorized and unlawful infringement” into the sovereignty of a political subdivision of the state of Montana, and that the tribal court should not be permitted to “dictate to the school district an area that is left within its sole discretion and jurisdiction.”

The Wolf Point School is entirely within the boundaries of the Fort Peck Reservation, but it is on fee land owned by the school district and is operated as a subdivision of the state of Montana. About 70 percent of its students are American Indians, and it receives some federal funding earmarked for schools that serve Native American students.

Justices to Get Indian Water Dispute

By Charles S. Johnson, Gazette State Bureau
November 11, 2001

HELENA – A bitter fight over water rights on the Flathead Indian Reservation, with angry charges flying back and forth among the lawyers, comes before the Montana Supreme Court on Tuesday.

At 2 p.m. Tuesday, the court will hear arguments in the case filed by the Confederated Salish and Kootenai Tribes against the Montana Department of Natural Resources and some of its top officials.

This dispute is the latest of many battles over water issues on the Flathead Indian Reservation between the tribes and nontribal members who also live on the reservation. Although the state has reached water compacts with most of the other tribal governments, no compact has yet been negotiated on the Flathead Reservation.

The tribes asked the court in June to take jurisdiction of their case directly rather than having to go first to a district court. They want the Supreme Court to overturn a controversial groundwater permit that they say DNRC issued in direct violation of state law and some of the court’s water-law precedents.

The Confederated Salish and Kootenai Tribes have urged the Montana Supreme Court to overturn the department’s order authorizing the issuance of a new groundwater permit to Reginald Lang on the Flathead Indian Reservation. In addition, they urged the court to find certain state DNRC officials in contempt of the court for ignoring the law.

Water bottling plan
Lang bought land on the Flathead Indian Reservation a few miles north of Hot Springs to establish a water bottling business. He applied for a beneficial use permit in September, 1999, to divert ground water from a flowing artesian well for his bottling plant. A hearing on his application occurred a year later, with the tribes declining to participate. The department approved the permit on May 11 of this year and issued its final order on June 7.

DNRC’s order granting Lang a beneficial water use permit has been held in abeyance since shortly after Supreme Court received the tribes’ petition in mid-June.

Lang, who fully participated in all DNRC administrative procedures for two years and prevailed before the state agency, “is now financially devastated, without a water permit,” his lawyer, Greg Ingraham of Ronan, told the court.

The tribes’ lawyer, James Goetz of Bozeman, sought contempt of court citations against the department; its director, Bud Clinch; its water resources administrator, Jack Stults; its chief counsel, Donald MacIntyre; and staff attorneys Tim Hall and Fred Robinson for willfully disobeying the court’s orders. They should be ordered to pay sanctions and the tribes’ attorney fees, he said.

Goetz accused the DNRC officials of engaging in “open and sustained defiance of this court’s orders. … Moreover, this open disregard to the orders of this court will place the reservation into a state of DNRC-sponsored anarchy and open the floodgates to any number of new water applications and lawless end-runs.”

In response, Assistant Attorney General Candace West sought court sanctions against Goetz for making false charges. She also submitted a brief calling for dismissal of the contempt charges, calling the allegations outrageous without any factual basis and accused Goetz of filing contempt charges while knowing there is no basis for them.

Why it’s illegal
Goetz charged that the department’s issuance of Lang’s water permit is illegal because new water applications on the Flathead Reservation may not be considered until the tribes’ rights are quantified, which hasn’t happened yet. He cited the Montana Supreme Court’s 1996 Ciotti decision as forbidding the state from issuing new water permits within the Flathead Reservation boundaries until the senior rights of the tribes are quantified or resolved by a compact with the state.

Goetz said that after the Ciotti decision, DNRC “engineered legislation,” passed by the 1997 Montana legislative session, to change state law to void the 1996 decision and enable the state to grant new water use permits within the reservation boundaries. Shortly after its passage, the tribes went to the state Supreme Court, which ruled in the 1999 Clinch case that DNRC was “not to issue further water rights use permits on the Flathead Reservation until the tribes’ rights have been quantified,” Goetz said.

DNRC tried to justify issuing the permit by saying the 1999 decision prevented only “the issuance” of beneficial use permits on the reservation but didn’t stop the “processing of applications,” Goetz said. The court on May 31 dismissed DNRC’s motion to modify the 1999 Clinch order.

Despite the order and the court rulings, Stults issued the order on Lang’s application, Goetz said. Yet the Supreme Court, in the Ciotti and Clinch rulings, “has repeatedly rebuffed the DNRC’s attempts to draw the tribes into defending their reserved (water) rights in piecemeal hearings, conducted in a hostile form,” Goetz said.

Goetz said the federal courts have found a federal reserved right to groundwater that underlies Indian reservations, and several states’ supreme courts have confirmed the existence of reserved water rights to ground water.

Why it’s legal
Harley Harris, a Helena attorney representing DNRC, Stults and Clinch, said the tribes failed to demonstrate why the Supreme Court should assume original jurisdiction, and said the tribes didn’t exhaust their administrative remedies.

Harris said the Ciotti decision shouldn’t apply to nontributary groundwater, like the water sought by Lang.

Even if Lang obtained the permit, the tribes would not be left without protection, Harris said. They would have other options. The tribes would have the right of any other water rights holder to present a factual showing before the DNRC to demonstrate actual harm to their rights, he said. What’s more, Harris said, they would have the right to sue Lang or other water users to stop their activities. Or, if they believed the aquifer is being depleted, Harris said they could petition for creation of a controlled groundwater area.

Other options include negotiating with the state for an interim management plant or resuscitating their “long-dormant federal lawsuit” or terminating negotiations and asking the state Water Court to determine their rights.

Even if the tribes have a plausible claim to a reserved water right in nontributary groundwater, they can’t keep others from using it without a showing of the potential damage or their present need for the water, he said.

DNRC Chief Legal Counsel MacIntyre defended his right to provide his independent legal judgment to department officials. He accused Goetz of failing to provide the court with facts that establish that the tribes were fully informed about the interpretation the state was taking on the Clinch case and the actions the state intended to pursue were directed by then-Gov. Marc Racicot.

Racicot, he said, had a public meeting in Polson on Feb. 16, 2000, and later that day with the tribal council in Pablo. In both meetings, MacIntyre said Racicot informed the audiences of how the state would proceed with water rights within the reservation’s boundaries Among them were groundwater developments that don’t have tributary relationships to the surface supply, the DNRC official said.

“I believe the position of the state of Montana announced by the governor and followed by the Department of Natural Resources and Conservation is well grounded in fact and warranted by existing law,” MacIntyre said.

Specifically, the Assiniboine and Sioux tribes on Monday asked the U.S. 9th Circuit Court of Appeals to overturn a decision by U.S. District Judge Jack Shanstrom that struck down the tax they had imposed since 1987.

Last June, when Shanstrom overturned the tax, Mervyn Shields, director of the tribe’s tax department, estimated the loss of BNSF tax payments at about $1.3 million annually from a tribal budget of $9.5 million.

Shanstrom based his ruling on a long line of recent court decisions that severely limited tribal authority to tax non-Indians on fee lands. Fee land on reservations generally refers to non-Indian lands purchased decades ago from individual tribal members. In one of its decisions, the U.S. Supreme Court held that federally granted rights of way should be treated as fee lands. BNSF rights of way through the reservation were granted by Congress in 1887.

In a prepared statement issued Monday announcing the appeal, the tribe’s publicity firm, Striegel & Associates in Oklahoma, quoted tribal Chairman Arlyn Headdress saying the railroad last year “suddenly stopped” paying the taxes, and “We had no alternative but to once again take legal action.”

The press release made no mention of recent court decisions, but harkened back to 1991, when Burlington Northern brought its first lawsuit against the tribe’s utility tax. The railroad lost that round and began paying the tax. It also ended up paying a similar tax on the Blackfeet Reservation.

“We though that was the end of it,” Headdress said in the press release Monday.

But in the intervening years, new court decisions went in a different direction. The 9th Circuit specifically overturned its own decision in the Blackfeet case while ruling in another case that arose on the Crow Reservation.

In February, the Fort Peck Tribes tried to fight back by filing suit against BNSF in tribal court to uphold the tax. Three weeks later, the railroad went to federal court, challenging the tribes’ authority to collect the tax and the tribal court’s authority to hear the case. Shanstrom ruled for the railroad five months later.

Tribal attorneys argue in their appeal to the 9th Circuit that the District Court in Billings made significant errors in its ruling.

“Burlington raises the very same issue that it lost on in 1991 and under federal law cannot seek to relitigate this issue,” Headdress said.

“When Congress created the reservation and granted the railroad right of way in the 1880s, it intended for the tribes to exercise taxing authority over the railroad,” he said. “Congress and the executive branch have encouraged tribes to govern their own reservations and become economically self-sufficient. An important part of that progress involves our right to assess reasonable taxes on non-Indian businesses operating within the boundaries of our reservation.”

Briefs filed on behalf of the tribes contend that consensual relationships have existed between the tribes and the railroad for more that 114 years.

Consensual relationship between a business entity and a tribe is one of two exceptions the Supreme Court makes for tribes exercising civil authority over non-Indians on fee lands within reservation boundaries.

Headdress said he also questioned the District Court’s jurisdiction in the case.

“We filed our suit in tribal court because the courts have held that issues concerning Native Americans that occur on tribal land should first be heard in tribal court,” he said. “By ruling on the railroad’s suit, the District Court prohibited this from happening.”

courts have also held in many of the recent cases that have been decided that there is no need to exhaust tribal court remedies.

Noting that 11 tribal members were killed and three seriously injured on the reservation since 1987, Headdress said a big factor involves “very real safety concerns” for the 8,000 people who live on the reservation.

“Clearly, the impact of the railroad’s operations on the health, safety and welfare of our people and the natural resources of our reservation more than justifies the tribes’ tax,” he said.

BNSF has until October to file a brief in response to the tribes’ action. When contacted Monday, Gus Melonas, spokesman for BNSF, said it is the railroad’s policy to refrain from commenting on pending litigation.

Tribal Trial Biased, Judges Rule

By Lorna Thackeray, The Gazette Staff
July 12, 2001

Racial overtones so pervaded a trial in Blackfeet Tribal Court that federal courts in Montana will not recognize or enforce a $2 million judgment against Glacier Electric Cooperative.

In a lengthy and strongly worded opinion issued this week, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the final argument in the trial appealed so blatantly to racial bias that it “offended” the co-op’s right to due process of law.

The argument by an attorney for plaintiff Glacier Construction Inc. was full of references to Custer, slavery, the cavalry riding into town to kill, “white man’s magic” and assertions of institutional bias in off-reservation society, the judges wrote.

“The closing argument unmistakably had the improper effect of encouraging the all-Blackfeet tribal jury to impose an impassioned sanction against the managers of the Co-op because of their race,” the opinion said. “We conclude that the Co-op was necessarily prejudiced when, in closing arguments, counsel used incendiary racial and nationalistic terms to encourage the all-Blackfeet jury’s award against the non-Indian Co-op.”

The case
Glacier Electric Cooperative provides power in Glacier County and part of Pondera County. The co-op was sued in tribal court by Glacier Construction Inc., which is owned by Blackfeet tribal members Ron Bird and Herb Gilham and their partner, Scott Sherburne. The three bought the construction company in 1991. Most of its business at the time consisted of work for the co-op replacing power poles, installing electric service and performing other maintenance.

After the three men bought the business, their relationship with the co-op soured, and the co-op increasingly used a non-Indian company to handle construction and maintenance. In June 1992, the co-op dropped Glacier Construction, citing concerns about the quality and expense of the work, liability exposure for purported use of unqualified employees and the co-op’s financial condition.

Glacier Construction’s owners then sued the co-op in tribal court, claiming that before purchasing their company, the co-op had assured them they would continue to work on Glacier Electric’s power grid. The lawsuit claimed negligent misrepresentation, fraud, breach of contract, defamation and violation of the tribal employment preference ordinances.

When the case was argued in tribal court, the construction company maintained that it was dropped because the co-op did not want to deal with an Indian-owned business and refused to give preference to tribal employment.

The jury agreed and awarded $1,382,181 in compensatory damages and $775,000 in punitive damages. Because the co-op’s insurance company funds were held off the reservation, Glacier Construction filed an action in U.S. District Court in Great Falls asking the court to “recognize, enforce and register” the judgment of the tribal court. The late U.S. District Judge Paul Hatfield agreed to recognize the judgment, and the co-op filed an appeal at the 9th Circuit.

The 9th Circuit panel ruled Tuesday that federal courts will continue to give comity, or mutual recognition of laws and judicial decisions of tribal courts.

“Nevertheless, our precedents make clear that a district court cannot properly give comity to a tribal court judgment, if the tribal court proceedings violated due process,” the ruling said.

The effects
Most of the effect of the decision will be felt in cases where a tribal court has issued a judgment against defendants whose assets are off the reservation, according to Jerry Lynch, the Great Falls attorney who represented Glacier Construction. It means an additional level of review at the federal court to determine if due process was accorded in the tribal court proceedings.

Lynch said the tribal court judgment still stands, but it can only be enforced on the reservation. His clients are looking at their options, he said. Those options could include an appeal to the U.S. Supreme Court or exploring ways to collect on co-op assets on the reservation.

Cut Bank attorney Larry Epstein, one of the co-op’s attorneys, said that he expects federal courts will continue to uphold tribal court decisions as long as everyone is treated fairly.

“It’s (the decision) limited to instances when due process is denied,” he said.

Epstein said that a majority of the co-op’s members are enrolled in the Blackfeet Tribe. When a judgment is awarded against the co-op, its members are the ones who pay it.